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Classification of Radioactive Waste and Spent Nuclear Fuel in European Union Law. Principle of Subsidiarity
 
PIIS231243500028021-1-1
DOI10.61525/S231243500024823-3
Publication type Article
Status Published
Authors
Yulia Lebedeva 
Occupation: Advisor of the Department of History and Records of the Ministry of Foreign Affairs of Russia
Affiliation: Ministry of Foreign Affairs of Russia
Address: Russian Federation, Moscow
Oleg E. Muratov
Occupation: Head of the Radiation Technology Department at TWELL LLC.
Affiliation: TWELL LLC.
Address: Russian Federation, Saint Petersburg
Journal nameEnergy law forum
EditionIssue 3
Pages32-41
Abstract

Each EU Member State has the right to determine its energy balance independently; all EU Member States produce nuclear waste in the course of electricity generation as a result of industrial, agricultural, medical and research activities, as well as in the course of decommissioning and restoring nuclear facilities. The methodological framework of the study was formed by methods of scientific cognition based on dialectical and historical materialism, methods of logical and comparative legal analysis. The issue of permanent storage of radioactive waste remains very sensitive for countries. The question of developing a uniform classification of radioactive waste and spent fuel for all EU Member States is constantly raised for radioactive waste management, i.e. for its extraction, transportation, stocking, safe interim or permanent storage. Euratom and the EC have repeatedly tried to develop and adopt a common legal classification of radioactive waste. Euratom currently uses the IAEA 2009 Classification of Radioactive Waste – GSG-1. The general approach to spent nuclear fuel in EU law has been defined by the Directive 2011/70/Euratom, which states that each EU Member State has the right to choose its own nuclear fuel cycle policy. In this context, spent nuclear fuel is treated in EU law as a valuable resource that can be recycled or as spent material destined for further final disposal. A legally binding document on a uniform classification of radioactive waste and spent nuclear fuel in EU law has not yet been developed. However, there is an understanding on the part of the EC, Euratom, and EU Member States of the need to fill this gap in EU law.

Keywordsnuclear law, legal regime of radioactive waste, spent nuclear fuel, Euratom
Received21.04.2023
Publication date12.10.2023
Number of characters28004
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1 The basic act governing nuclear relations in the EU is the Treaty establishing the European Atomic Energy Community of 1957 (Euratom Treaty), which in Article 8 for the first time stipulated that the Joint Nuclear Research Centre would ensure “that a uniform nuclear terminology and a standard system of measurements are established “[1] for the Member States of the European Union (EU). This provision has been further implemented by EU directives and regulations. The development and adoption of uniform legal criteria for the classification of radioactive waste (RW) and spent nuclear fuel (SNF) for the EU was particularly important under the conditions of the “common nuclear feed market as of January 1, 1959” [2] in the handling, transport and permanent storage of RW and SNF. Chapter IX “The Nuclear Common Market” of the Euratom Treaty formalized the basic provisions applicable to goods and products of the nuclear industry according to Annex IV of the Euratom Treaty.
2 Article 37 of the Euratom Treaty contains only a general rule regarding RW, which states that each EU Member State shall provide the European Commission (EC) with “general data relating to any plan for the disposal of RW in whatever form, which makes it possible to determine the degree of risk of radioactive contamination of the water, soil or airspace" [3] of another EU Member State after the implementation of such plan. This means that the EU competence with regard to RW is of a general nature and that EU Member States decide how to dispose of RW at national level. Thus, one of the fundamental principles of the construction and operation of the EU institutional system – “the principle of subsidiarity”, which is intended to “provide greater flexibility in solving problems arising in the process of European integration” — began to apply in this area [4].
3 There is no uniform classification of RW and SNF in EU law. Until 1983, Euratom made no attempt to adopt and develop a single standard for the classification of RW and SNF. Therefore, some EU Member States have a number of RW classifications based on the internal needs of national NPPs established for regional or national use, while other EU Member States have RW classifications only for scientific purposes, and in such countries as, for example, Italy and Finland, the main criterion is operational requirements.
4 In this context, the EU Joint Nuclear Research Center first considered the need for RW classification in its 1983 report “Analysis of the Current Situation and Prospects in RW Management” and proposed to divide RW into four main categories: low-level waste (LLW), intermediate-level waste (ILW), alpha waste, and high-level waste (HLW) [5].
5 In the Report, it was proposed to include in the LLW category (mainly process) waste containing or possibly containing beta-gamma emitters, as well as waste containing essentially natural alpha emitters in low concentrations, i.e. low activity levels. These are wastes resulting from the activities of research centers, from the industrial and medical use of radioelements, and from the operation of various complete nuclear fuel cycle (NFC) facilities.
6 The ILW category included process waste containing primarily beta-gamma emitters in relatively high concentrations. The alpha waste category included process and treated waste from nuclear laboratories and SNF treatment facilities. Only vitrified waste containing 235U fission fragments and transplutonium elements (Am, Cm, etc.), which are alpha, beta, and gamma emitters, were classified as HLW.
7 The next attempt to develop a uniform RW classification in the EU was the Euratom EC Recommendation of 1999 on a classification system for solid RW [6]. It was based on the IAEA classification with some modifications to take into account the experience of European national experts. It was proposed to the EU Member States to adopt a uniform system of solid RW classification for national purposes and to facilitate information management in this field. Solid RW was divided into three types based on activity, half-life, and heat generation:
8 1. Intermediate level waste (ILW) is a type of RW, primarily of medical origin, that decays during a period of interim storage and can then be handled outside the regulatory system, provided that cleanup levels are met.
9 2. Low and intermediate level waste (LILW) in which the concentration of radionuclides is such that heat generation is sufficiently low. The heat generation limit of 2 kW/m3 recommended by the IAEA for LILW has not been retained by European experts. It is recognised that this value is only relevant for on-site safety analysis.
10 LILW is divided into:
11 2.1. Short-lived waste (LILW-SL) is RW with a radionuclide half-life of 30 years or less and a limited concentration of alpha-emitting radionuclides with a specific activity of 400 Bq/g.
12 2.2. Long-lived waste (LILW-LL) is long-lived radionuclides and alpha emitters whose concentration exceeds the limits for short-lived waste. 3. High-level waste (HLW) is waste whose radionuclide concentrations are such that their high heat generation is considered during storage and disposal and heat removal is provided (heat generation is site-specific, and this waste comes mainly from SNF treatment).

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